The 2019 Nigerian Data Protection Regulation: A Protectionist Initiative from the NIDTA
The NIDTA Data Protection Regulation
There have been several advances in business technology in the past decades, most of which have been validated by far reaching internet access, improved software development tools and the reliability of data centers. Many countries have enacted laws to keep up with the trends of technology in business and its implications. The General Data Protection Regulation 2018 (GDPR), applicable to all European Union (EU) members easily comes to mind as the benchmark enactment for the protection of personal data.
In line with current realities and global standards, Nigeria has joined the league of countries adopting stricter legislation on data protection with the enactment of the Nigerian Data Protection Regulation 2019 (the Regulation/NDPR), the latest initiative conceived by the National Information Technology Development Agency (NITDA).
Although there are existing laws on data privacy, the Regulation specifically prescribes the minimum data protection requirement for the collection, storage, processing, management, operation and technical control of personal data in Nigeria. it may also be the strictest and most far reaching data law passed in Nigeria, imposing stringent conditions on companies and stiff penalties on defaulters.
What and Who does the Regulation Apply to?
All transactions in which the personal data of natural persons resident in Nigeria, or natural persons outside Nigeria of Nigerian descent, is being processed come under the purview of the Regulation. It equally applies to government agencies and institutions, and private sector organisations that own, use or deploy information systems as well as organizations based outside Nigeria if such organisations process personal data of Nigerian residents.
The Regulation provides for two different types of data-handlers: ‘data administrators’ and ‘data controllers’. A data controller is defined as a person who either alone, jointly with other persons or in common with other persons or a statutory body determines the purposes for and the manner in which Personal Data is processed or is to be processed. In simple terms, they are the manager of personal data who instruct the data administrators.
Key obligations of the Regulation
- Consent Obligation
Under the terms of the Regulation, a double obligation of disclosure and consent is imposed on the Data Controller providing that no data shall be obtained or processed except the specific purpose of collection is made known to the Data Subject (anyone whose personal data is being collected, held or processed) and his/her consent obtained prior to collection- and such consent from a Data Subject must have been obtained without fraud, coercion or undue influence.The subject of consent is a sensitive one as the Regulation envisages that the Data Subject has made a deliberate choice to share his personal information for processing, and in the event that such consent was obtained under irregular circumstances, it would be null and void.It is important to note that the Data Subject has a right to withdraw his/her consent at any time, and must be informed of this right and the method to withdraw any prior given consent with ease.According to the NDPR, consent could be obtained through a statement or a clear affirmative action. A typical example of this is when a user on a website platform clicks “I understand and I accept” after reading (or least after being shown) a privacy statement or cookie consent.
- Right to be Forgotten
The right to be forgotten or the right to erasure appears in Articles 3.9 and 3.10 of the NDPR. It grants the Data Subject the right to request the Controller to delete Personal Data without delay, and the Controller is bound to delete such Personal Data where one of the stated grounds applies. Where the Controller has made the Personal Data public and is obliged to delete the Personal Data, he must take all reasonable steps, to inform Controllers processing the Personal Data of the Data Subject’s request.Whereas the GDPR cites specific reasons which trump the right to erasure, the NDPR simply takes the ambiguous route by stating that “The exercise of the foregoing rights shall be in conformity with constitutionally guaranteed principles of law for the general protection and enforcement of fundamental rights”.
It is important to disclose that the NDPR demands that every Data Controller should as at 25 April 2019 (three months after the Regulation was issued) publish its data protection policy.
- Privacy and Data Protection Audit
Another time-based requirement from the Regulation is the obligation of each organization to conduct a detailed audit of its privacy and data protection practices. Such audit must be conducted within 6 months of the issuance of the Regulation (which means the first of such audit should have been conducted on or before July 25, 2019). Article 4.5 (a-j) contains the least content expected of these audits.
Where a Data Controller processes the Personal Data of more than 1000 persons within a period of six months, that Data Controller is expected to forward a soft copy of the summary of the audit to the Agency (NITDA). Also, a Data Controller who processed the Personal Data of more than 2000 Data Subjects in a period of 12 months shall, not later than the 15th of March of the following year, submit a summary of its data protection audit to the Agency. This is to be done on a yearly basis.
- Appointment of a Data Protection Officer
One of the important provisions of the NDPR is the obligation of Data Controllers to appoint a Data Protection Officer. This individual is responsible for supervising the strategy behind data protection and ensuring a company is compliant with the Regulation. He/she is also in charge of instructing and training the company’s employees on what’s required of them and their organization, and acts as the contact between the organization and the regulatory authorities. On the other hand, NITDA has been empowered to appoint, register, and license Data Protection Compliance Organisations (DPCOs) who shall on behalf of the Agency monitor, audit, conduct training and data protection compliance consulting to all Data Controllers.
Interestingly, the Regulation empowers the mass media and the civil society with the right to uphold accountability and foster the objectives of this Regulation. It remains to be seen how this will pan out.
- Transfer of Data to Third Party Countries
The Regulation envisages cases where data may have to be transferred to third party countries or international organisations. Any transfer of Personal Data in this regard is subject to the supervision of the Honourable Attorney General of the Federation (HAGF) who would typically consider the reflection of Nigerian laws and approach to data protection in these foreign territories. A transfer may also be approved if NIDTA concludes that the third-party destination of the data ensures adequate protection.
In the event that neither NIDTA nor the HAGF are certain as to adequacy of safeguards for data processing in a foreign country or an international organisation, the data controllers may still be able to process and transfer data provided anyone of set conditions are met.
Unlike the GDPR where fines depend on the severity of the breach, the Regulation focuses on the number of data subject affected.
In the case of a Data Controller dealing with more than 10,000 Data Subjects, defaulters are liable to payment of the fine of 2% of Annual Gross Revenue of the preceding year or payment of the sum of 10 million Naira, whichever is greater. Where the Data Controller is dealing with less than 10,000 Data Subjects, such data controller shall be liable to a payment of the fine of 1% of the Annual Gross Revenue of the preceding year or payment of the sum of 2 million Naira, whichever is greater. It is instructive to note that the payment of these fines does not absolve the defaulters of any criminal liabilities.
Increased commercial activities along digital platforms have led to a greater risk of data mismanagement and exposure of customers and clients. The NITDA therefore deserves some accolades for issuing an updated legal framework to secure personal data protection in Nigeria. Though the NDPR still has some gaps when compared with what obtains in other jurisdiction (the GDPR, for instance), it is a welcome development, especially in the light of recent scandals that have weakened people’s trust in how organisations process personal data.
It is important for companies that collect and process data to be familiar with the terms of the NDPR as the consequences for non-compliance could be dire.
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